Steiner v. Erie Dime Savings & Loan Co. , 1881 Pa. LEXIS 199 ( 1881 )

Mr. Justice Paxson

delivered the opinion of the court

The deposition of Henry Stahl was properly rejected. He was liable in event of a recovery, for the costs, and to this extent at least was interested in defeating the action. Nor was he made competent by the Act of 1869, for the provisions of said Act do not apply to suits by or against administrators. This was a suit against an administrator.

The bank-book, the rejection of which forms the subject of the second specification of error, might possibly have been evidence had the pleadings stood as originally filed. But when the cause was called for trial below, the defendant withdrew the plea of non-assumpsit and went to trial upon the plea of payment alone. The bank-book did not even tend to support this plea. It merely showed the deposit of money by Stahl which was subject to his check. This, in the absence of any appropriation to the notes in suit, or direction to so appropriate it, was not payment. Indeed, the defendant did not allege that it was payment, his contention being that the bank was bound to appropriate the deposits to the notes, and that its failure to do so relieved Brown, who was Stahl’s surety. This was an equitable defence, and under all the authorities was not admissible under the plea of payment. It is sufficient to refer to Updegraff v. Spring, 11 S. & R. 188; Hamilton v. Moore, 4 W. & S. 570; Covely v. Fox, 1 Jones 171; Holt v. Bodey, 6 Harris 207. The plea of payment means common law payment — actual payment. It need not be in money; it may be by the transfer of dioses in action, or other property, but it must be something which is accepted as money. When payment is pleaded with leave to give the special matter in evidence, an equitable defence such as the one set up in this case may be introduced when the proper notice has been given. Such plea, with notice, operates substantially as a bill in equity praying an injunction ; admitting of any suggestion which shows, ex seqno et bono, the plaintiff ought'not to recover; without notice, the door is closed upon every merely equitable consideration, which falls short of technical payment: Hawk v. Geddis, 16 S. & R. 28.

We see no error in those portions of the charge referred to in the 3th and 4th specifications. We were not furnished with the special Act regulating the rate of interest which the corporation plaintiff might be allowed to charge, and in its absence must presume the court below construed it correctly.

Judgment affirmed.